KangoGift, Inc., ("KangoGift," "the Company," "we," or "us,") provides certain websites,
including the websites available at the domain name www.KangoGift.com (each, a "Site") and certain services
made available to registered users of the Sites ("Services"). This KangoGift User
Agreement is the legal agreement ("Agreement") between you and KangoGift governing
your use of the Services. Please read this Agreement carefully. KangoGift is willing
to provide the Services to you only on the condition that you accept all of the
terms and conditions contained in this Agreement. You accept the terms and conditions
of this Agreement by registering for and using the Services. If you are unwilling
to accept this Agreement, do not use the Services.
DESCRIPTION OF SERVICES
Subject to your compliance with the terms and conditions of this Agreement, KangoGift
will provide the Services to you after you have successfully completed the registration
process for the Services or completed a commercial transaction, which is made available
to you through the Sites. Upon Ka ngoGift's acceptance of your registration for participation
in the Services, KangoGift may send you an SMS text message containing an authorization
key for validation of your account at KangoGift. Once you have entered your authorization
key and validated your status as an authorized user of the Services, you will be
able to make use of wireless communication devices, such as cellular telephones,
to place orders and settle transactions for the purchase of certain third-party
products (each, a "Product") contained in an order catalogue, as updated by KangoGift
from time to time ("Product Catalogue"). The communication standards for the Services
include, but are not limited to: SMS, MMS, and web-based browser technology, provided
that in order to use the SMS-based Services, you must maintain an active account
with a carrier of electronic communications through mobile devices (each, a "Carrier").
Your use of KangoGift implies your compliance for the company to send emails, SMS
messages, and/or MMS messages on your behalf to recipients specified by you which
are relate to the gift voucher transaction completed on the site.
AVAILABILITY OF SERVICES
You acknowledge and agree that the availability of SMS, MMS, the internet, and your
ability to use the Services is on an "AS IS" and "AS AVAILABLE" basis. You acknowledge
that delivery of SMS and MMS messages and availability of web-based browsing is
not guaranteed. You acknowledge that the Services may differ depending on the Carrier
with whom you maintain an account and that Carrier's ability to support the Services.
KangoGift is not responsible for the act or omission of any Carrier, any limitations
imposed by such Carrier, or such Carrier's ability or inability to support the Services.
In addition, KangoGift is not responsible for any limitations of the internet. In
the event your Carrier fails to deliver any communication to KangoGift or a provider
of any Product in timely fashion, due to, but not limited to, mobile network failure
or non-compatibility of your phone model with the Services, you acknowledge and
agree that KangoGift shall not liable for any loss or damage. In addition and without
limiting the foregoing, in no event will KangoGift be liable for any error by you
in using the Services, including submission of an order or other message to an incorrect
allocated number or short code.
MODIFICATION OF SERVICES
KangoGift reserves the right, in its sole discretion, to modify the Services from
time to time and without notice, including by removing, adding, or modifying Products
and/or third-party vendors from the Product Catalogue. KangoGift shall have no liability
to you for any modification or discontinuation of the Services. If you object to
any such changes, your sole recourse shall be to cease using the Services. Continued
use of the Services following any such changes shall indicate your acknowledgment
of such changes and satisfaction with the Services as so modified.
PAYMENT & BILLING
You acknowledge and agree that for each order you place through the Service, the
full cost of Products you order (for which prices are subject to change without
notice) assessed against your credit card or charge card. You acknowledge and agree
that a SMS or web browser command originating from your account constitutes an authorization
for KangoGift to charge this amount to your credit card or charge card, and you
assume all liability for and shall promptly pay any and all charges. Without limiting
the foregoing, you acknowledge and agree that you will pay assessed charges for
any and all orders placed from your account, regardless of whether you actually
receive the Products. In addition, you agree to pay all fees charged by your Carrier
in connection with your use of the Services. You acknowledge and agree that these
rates depend on the applicable Carrier and your personal subscription package with
that Carrier. KangoGift will provide you with reasonable notice of any material
modification in the fees charged for the Services, which notice may be provided
by posting the new fee schedule on the Sites.
LIMITATIONS ON YOUR USE OF THE SERVICES
You may not attempt, or authorize, encourage, or support others' attempts, to circumvent,
reverse engineer, decrypt, break or otherwise alter or interfere with the Service.
You agree to advise KangoGift promptly of any such unauthorized use(s) or attempt(s).
You acknowledge and agree that the Services are for your personal use only. You
acknowledge and agree that you may not copy, distribute, sell, resell, or exploit
for any commercial purposes any portion of the Services, or any products accessible
through the Services. KangoGift is not liable for any claims, actions, damages,
or other liability incurred as a result of any unauthorized use of your account
or the Services, and you agree to be fully liable for any such unauthorized access.
MODIFICATION OF AGREEMENT
KangoGift may amend, supplement, or modify this Agreement from time to time by posting
the amended Agreement on the Sites, and you agree to be bound by any such amendment
or modification. If you object to any such changes, your sole recourse shall be
to cease using the Services. Continued use of the Services following posting of
any such changes shall indicate your acknowledgment of such changes and agreement
to be bound by the revised Agreement, inclusive of such changes.
PRIVACY
As part of the registration process, you will be asked to provide certain personal
information to us, such as your name, contact information, and credit card number.
KangoGift has an unrestricted right to collect and use any personal information
you provide in connection with the Services, provided that any such use shall be
in accordance with our Privacy Policy available at www.KangoGift.com, which is hereby incorporated by reference.
If you use the Sites and/or the Services, you are accepting the terms and conditions
of our Privacy Policy. If you do not agree to have your information used in any
of the ways described in the Privacy Policy, you must discontinue use of the Sites
and/or the Services.
TERMINATION
KangoGift may suspend your ability to use the Services or may terminate this Agreement
effective immediately and without notice to you if (a) KangoGift receives repeated
faulty orders for Products in connection with your account, including but not limited
to the use of erroneous or spoof SMS orders or duplicate requests for Products;
(b) your use of the Services is resulting in excessive charge backs on the credit
card associated with your account; (c) you fail to make timely payment of any amounts
when due; or (d) KangoGift believes you have violated or acted inconsistently with
the letter or the spirit of this Agreement. After any suspension or termination,
you may be required to respond to an authenticating message to reactivate your account
and/or pay a reactivation fee. YOU AGREE THAT KangoGift SHALL NOT BE LIABLE TO YOU
FOR ANY TERMINATION OF THIS AGREEMENT OR OF YOUR ACCESS TO THE SERVICES. You may
discontinue your participation in and access to the Services at any time by delivering
notice to KangoGift at support@KangoGift.com
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE
PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. KANGOGIFT EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
USE OR PURPOSE, AND NON-INFRINGEMENT. KANGOGIFT MAKES NO WARRANTY THAT THE SERVICES
WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY,
SECURE, OR ERROR FREE. KANGOGIFT DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS
REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES WITH RESPECT TO PERFORMANCE,
ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. YOU UNDERSTAND
AND AGREE THAT ANY PRODUCTS YOU OBTAIN THROUGH USE OF THE SERVICES IS DONE AT YOUR
OWN DISCRETION AND RISK, AND KANGOGIFT MAKES NO WARRANTY REGARDING ANY DEALINGS
WITH OR TRANSACTIONS ENTERED INTO WITH ANY OTHER PARTIES THROUGH THE SERVICES. THE
ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORTS AND RESULTS
TO BE OBTAINED THROUGH THE USE OF THE SITES OR THE SERVICES IS WITH YOU. NO ADVICE
OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KANGOGIFT OR THROUGH
THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
LIMITATION OF LIABILITY
YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL
KANGOGIFT OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS OR LICENSORS
BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES,
INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL,
USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES), ARISING OUT OF OR RELATED TO YOUR USE OF THE SITES OR THE SERVICES,
REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE
AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. THE PARTIES ACKNOWLEDGE THAT
THE TERMS OF THIS SECTION 10 REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT
AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS
OF LIABILITY. THE AGGREGATE LIABILITY OF KANGOGIFT TO YOU FOR ALL CLAIMS ARISING
FROM OR RELATED TO THE SITES OR THE SERVICES IS LIMITED TO ONE HUNDRED DOLLARS ($100).
Some jurisdictions do not allow the exclusion of certain warranties or the limitation
or exclusion of liability for incidental or consequential damages. Accordingly,
some of the above limitations and disclaimers may not apply to you. To the extent
that we may not, as a matter of applicable law, disclaim any implied warranty or
limit its liabilities, the scope and duration of such warranty and the extent of
our liability shall be the minimum permitted under such applicable law.
INDEMNIFICATION
You agree to indemnify, defend and hold harmless KangoGift, its agents, employees,
representatives, licensors, affiliates, officers, directors, and partners, from
and against any and all claims, liabilities, damages, losses, costs, expenses, fees
(including reasonable attorneys' fees and court costs) resulting or arising from
any third-party claim in connection with (a) any information you (or anyone accessing
the Services using your password) submit or transmit through the Services, (b) your
use of or access to the Services, (c) your violation of this Agreement, (d) your
violation of any rights of any third party, or (e) any viruses, trojan horses, worms,
time bombs, cancelbots, spyware, or other similar harmful or deleterious programming
routines input by you into the Services.
INTELLECTUAL PROPERTY
The Services and the Sites contain or comprise copyrighted and/or proprietary subject
matter that is owned by KangoGift and/or its licensors. All such material is protected
by relevant intellectual property laws, including copyright and/or trade secret
laws. Without limiting anything herein, the material may not be copied, modified,
reproduced, republished, posted, transmitted, sold, offered for sale, publicly performed,
publicly displayed, or redistributed in any way without our prior written permission
and the prior written permission of any applicable third-party entity. You must
abide by all copyright notices, information or restrictions contained in or attached
to any communication between you and KangoGift. In addition and without limiting
the foregoing, all trademarks, service marks, trade names, domain names, slogans,
logos, and other indicia of origin ("Marks") that appear on or in connection with
the Services are the property of KangoGift and/or its affiliates, partners, licensors
and/or licensees. You are not authorized to use any such Marks. Ownership of all
such Marks and the goodwill associated therein remains with us or those other entities.
MISCELLANEOUS
This Agreement and the relationship between you and KangoGift shall be governed
by the laws of the State of Delaware, without giving effect to any choice of laws
or principles that would require the application of the laws of a different country
or state. Any legal action, suit, or proceeding arising out of or relating to this
Agreement, or your use of the Services, must be instituted exclusively in the federal
or state courts located in the District of Delaware and in no other jurisdiction.
You further consent to personal jurisdiction and venue in, and agree to service
of process issued or authorized by, any such court. KangoGift may provide you with
notices, including those regarding changes to this Agreement, by email or by posting
changes on the Sites. Our failure to exercise or enforce any right or provision
of this Agreement shall not constitute a waiver of such right or provision. If any
provision of this Agreement is found by a court of competent jurisdiction to be
invalid, the parties nevertheless agree that the court should endeavor to give effect
to the parties' intentions as reflected in the provision, and that the other provisions
of this Agreement remain in full force and effect. You agree that regardless of
any statute or law to the contrary, any claim or cause of action arising out of
or related to use of the Services or this Agreement must be filed within one (1)
year after such claim or cause of action arose or be forever barred. The section
titles in this Agreement are for convenience only and have no legal or contractual
effect. The Agreement constitutes the entire, exclusive and final statement of the
agreement between you and KangoGift with respect to the subject matter herein, superseding
any prior agreements or negotiations between you and KangoGift with respect to the
Services.
